Kemp v. Seterus, Inc.

DONNA KEMP, on behalf of herself and on behalf of three classes of similarly situated persons, Plaintiffs,v.SETERUS, INC., et al., Defendants.

MEMORANDUM OPINION

PETER
J. MESSITTE UNITED STATES DISTRICT JUDGE

Putative
Class Plaintiff Donna Kemp has sued the servicer of her home
mortgage loan, Seterus, Inc., and the owner of the loan,
Federal National Mortgage Association (Fannie Mae), alleging
violations of various Maryland state lender laws as well as
the federal Truth in Lending Act (TILA), 15 U.S.C. §
1601, et seq. Defendants have jointly filed a Motion to
Dismiss the Second Amended Complaint. ECF No. 24. For the
reasons that follow, Defendants' Motion to Dismiss is
GRANTED and the case is REMANDED to state court for all
further proceedings.

I.
FACTUAL AND PROCEDURAL BACKGROUND

This
action centers around Seterus' servicing of Kemp's
mortgage loan and allegedly improper property inspection fees
that it charged her following her default on the loan.

A.
Kemp's Mortgage Loan and Subsequent Default

In
April 2007, Kemp obtained a home mortgage loan from
Countrywide Home Loans, Inc., secured by a deed of trust on
real property located in Glen Burnie, Maryland (the
Property). Hr'g Tr. at 4:3-7; ECF No. 24-4. Although the
exact date has not been provided, at some point after the
origination of the loan, it was assigned to Fannie Mae, the
current owner. Hr'g Tr. at 5-6.

In
2017, Kemp fell behind on her mortgage payments. ECF No. 17
¶ 19. On April 10, 2017, Seterus, Kemp's loan
servicer, declared the loan to be in default and stated that
if Kemp did not “cure the default on or before May 15,
2017, it may result in acceleration of the sums secured by
the mortgage and may result in the sale of the
premises.” Id. ¶ 21. On July 14, 2017,
Kemp purportedly wrote to Seterus requesting information
about the status of the loan, notifying it that she had not
been receiving her monthly periodic statements. Id.
¶ 22.

Seterus
responded to Kemp's request for information on July 24,
2017. In its correspondence, Seterus disclosed to Kemp,
apparently for the first time, that it had charged her loan
account with certain property inspection fees from August 26,
2016, through July 24, 2017. Id. ¶ 24. Kemp
again wrote Seterus on September 6, 2017, requesting
information about the property inspection fees as well as an
accounting as to the total due on the loan. Kemp alleges that
Seterus received this second request on September 21, 2017.
Id. ¶ 25.

On
September 25, 2017, in response to her request for a payoff
total on her loan, Seterus informed Kemp that she owed
$180.00 in property inspection fees that she was required to
pay in connection with any loan payoff. The next day, Seterus
responded to Kemp's second inquiry asking about the
property inspection fees, stating:

[T]he authority to charge fees such as property inspection
fees or legal fees is contained in the Deed of trust . . . .
Enclosed is a copy of the Deed of Trust for your reference.
Due to the continued contractual delinquency of the loan,
Seterus exercised its right under the terms of the signed
Deed of Trust to protect the loan owner's interest in the
property. Property inspections are ordered when a loan is
more than 45 days contractually delinquent, and every 30 days
if the contractual delinquency continues. These were drive-by
inspections to see if the property was occupied in good
repair. The fee for this service was billed to Seterus by an
outside contractor and then assessed to the loan. As of the
date of this loan, Seterus has assessed the loan [twelve]
property inspection fees [at $15.00 per inspection] totaling
$180.00. These fees are considered valid.

Id. ¶ 26.

Kemp
alleges that the assessment of these property inspections
fees on the loan violated Maryland law, specifically Md. Com.
§ 12-121(a)(1)(ii), which prohibits
“lenders” from imposing such fees.

B.
Kemp's Trial Plan and Loan Modification

In
addition to the referenced correspondence regarding her loan,
Kemp alleges that in a letter dated July 20, 2017, Seterus
offered her a “Trial Period Plan” (TPP) in order
to obtain a Fannie Mae loan modification. The plan required
Kemp to make three trial payments to Seterus, on behalf of
Fannie Mae, on or before September 1, October 1, and November
1, 2017. Kemp claims she accepted the TPP offer and made all
the trial period payments. Id. ¶ 31-33.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Since
the loan modification, Kemp states that she has continued to
make her modified mortgage payments and that her loan remains
in effect. Id. ¶ 37. At no time did Seterus ...

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